As the spread of the COVID-19 Delta variant gathers steam across our nation and children under age 12 remain ineligible for vaccination, new SEC Chair Gary Gensler announced today that, effective on September 7, 2021, he is unilaterally terminating the program under which SEC employees have been permitted to use a limited amount of administrative leave for dependent care while working remotely. The union has notified Gensler that the SEC has an obligation to bargain over both the decision to change this seventeen-month old program, as well as what such a change would look like. For that reason, the union served a national grievance on the SEC, alleging an unfair labor practice for failure to bargain with employees’ union representatives over the decision to terminate the program. The union is also concerned that the SEC’s unnecessarily bellicose posture on this issue may signal a new predisposition to prematurely terminate other COVID safety programs, including the one that allows employees to work remotely rather than risk exposure to the virus by commuting to the office. Currently, that program has been extended to at least November 1, 2021, despite the fact that many other federal agencies and private sector entities have already decided to extend to January 1, 2022.

The SEC and the union created the COVID administrative leave program during the last administration to protect employees and their families from infection while simultaneously permitting them to work remotely for the agency. It has been a key feature of the pandemic employee safety protocols the union negotiated with Gensler’s Trump-appointed predecessor, Jay Clayton.

That Gensler’s first significant human capital policy move at the SEC primarily will impact employees with children who want to continue to work for the agency while avoiding exposure to a virus that may be deadly for them and their families is not what the union expected. We believe that continuing to support the well-being of our staff outweighs the minimal cost to the agency. Indeed, with this program in place, the SEC’s employee engagement as measured by the 2020 Federal Employee Viewpoint Survey increased substantially. Engaged workers produce more and better work.

Gensler has proposed a new program providing a one-time allotment of far less “Covid-19 Emergency Leave,” which also would include much more stringent criteria for use and would expire on December 31, 2021, without regard to the facts on the ground concerning the virus. Gensler says he is terminating the current program because he does not think employees will need it after September 7. The union notes pointedly that, if that turns out to be the case due to a safe return to the operation of daycare centers and schools this fall, there will be no need to terminate the program since employees will not need to use it and thus it will have little to no impact upon agency productivity. If, however, employees must respond to the surging Delta variant with risk mitigation practices similar to those they relied on earlier in the pandemic, as seems likely at this point, the administrative leave feature of the SEC’s pandemic response will be as critical now as it was previously. Indeed, the program may be even more important this fall, given that the Delta variant is more contagious than earlier versions of the virus, and many dependent children cannot yet be vaccinated.

In any event, the cost to the SEC of this program is relatively small, particularly when weighed against its obvious benefits. Based on SEC responses to union information requests, the COVID administrative leave program only impacts roughly 3% to 4% of total SEC staff work time. Many employees who use the leave report that they are “volunteering” additional time outside their regular workday to maintain their traditional productivity. Despite the program’s small impact upon the agency’s productivity, it is a key feature of the SEC’s pandemic response. Employees use administrative leave under the program to allow them to telework while reducing or eliminating infection risks associated with school or dependent care.

Although conditions are different now than in the early days of the pandemic, the surging Delta variant’s impact on children has been well documented. Many SEC employees have been anticipating using administrative leave into the fall to help protect their dependents, as well as to limit their own exposure to potentially infected dependents. Given the negligible impact on the agency’s operations and the Delta variant’s current surge among unvaccinated children, it would seem intuitive to adopt the same “wait and see” strategy utilized by Gensler’s predecessors, by continuing to make this program available into the fall until it is clear that circumstances have changed sufficiently to warrant a change.

Gensler’s decision is also at odds with his recent Town Hall comments regarding his “close working relationship with the union,” during which he asserted that he shares the union’s strong commitment to employee health and safety. Chapter 293 Vice President Lance Alworth, Jr., a senior attorney in the SEC’s Division of Exams, observed this afternoon that “After seeing a willingness from prior leadership to back up statements that employee health and safety was their first priority with actual safety programs, it is troubling to see the strategy palpably shifting at the top. The employees who relied on this program won’t feel as if they and their families’ health and safety is a top management priority at this stage of the pandemic.”

The duties of an SEC Chair are not limited to the agency’s regulatory impact. Equally important to our mission is the Chair’s role as a human capital policy steward charged with protecting the workforce and fostering a workplace that attracts and retains the best and the brightest. In this regard, Chapter 293 President Greg Gilman, a longtime SEC senior enforcement counsel, noted today that “Dismantling a program primarily designed to help SEC employees protect their kids, which we negotiated with Chair Clayton during the last administration, is not only dangerous but I fear that it will cut into employee engagement, reduce productivity and make the SEC a less attractive place to work. This is just a bad decision.”

Obviously, the COVID administrative leave program will eventually be ended when it is appropriate to do so, but it makes no sense to terminate it in the late summer of 2021 under the current circumstances. In essence, Gensler’s elimination of this program amounts to a gamble on his part that it is no longer needed on the terms that govern it now. However, if his gamble fails, it will be SEC employees and their young children, not Gensler, who will pay the price.